FCC told that SMS short codes should be open to all

Public Knowledge steps up its campaign to get the FCC to classify short codes …

The Public Knowledge advocacy group stepped up its campaign to get the Federal Communications Commission to make it clear that wireless text messaging and short codes fall under the Communications Act's common carrier umbrella. "Without such a classification, wireless carriers could decide who says what to whom through text messages, as well as who is allowed to use short codes to address those messages," PK's Jef Pearlman wrote on his policy blog on Monday. The group has sent a letter to the FCC explaining its position.

Short codes—those five- or six-number sequences you can punch on your cell phone to send or opt in for news and information—are everywhere. You can send in a crime tip with the codes, get "mad love" advice (good luck with this), participate in TV game shows, donate to charities, get political action updates, contact emergency medical services in a sports stadium, buy ring tones, and do tens of thousands of other salubrious or idiotic things with them.

But in September of last year, Verizon abruptly ended the short code Camelot days by refusing to give one to the pro-choice group NARAL. The company said that its policies bar "highly controversial" or potentially "unsavory" messages. As the public's temperature rose over the move, the company reversed the decision.

Alas, once these things happen, you know how it goes—the regulatory question genie jumped out of the bottle. Once out, it immediately asked whether the big wireless incumbents get to function as gatekeepers of short code content.

PK says no, no, no. The crux its stance is that text and short code messaging should be classified as a common carrier service under Title II, Section 202 of the Communications Act. In fact, let's sweat the details here and quote the language.

(a) Charges, services, etc.
It shall be unlawful for any common carrier to make any unjust or
unreasonable discrimination in charges, practices, classifications,
regulations, facilities, or services for or in connection with like
communication service, directly or indirectly, by any means or
device, or to make or give any undue or unreasonable preference or
advantage to any particular person, class of persons, or locality,
or to subject any particular person, class of persons, or locality
to any undue or unreasonable prejudice or disadvantage.

To some, the aforementioned may seem as if it settles the matter. But not to Verizon, which argues that short codes do not constitute a "transmission based service," and thus cannot be understood as citizens of Common-carrierland. The company's logic goes like so: "Any transmission service to and from the short code must be supplied separately," Verizon told the FCC in mid-April. So, if Ars is getting this right, short codes can't be classified as common carriage because they're really just short cuts that trigger the data that you get after you send off the code.

PK responds that short codes are basically phone numbers, and a telco can't refuse a phone number to individuals or companies that it doesn't like. "Provisioning a phone number is part of the underlying voice service," Pearlman argues. "Likewise, provisioning a short code is part of an underlying text messaging service. And carriers are not permitted to discriminate in any of these activities."

But Verizon warns that putting short codes on the protected species list will have dire consequences, including the "widespread availability of legal and illegal adult content on mobile devices, including devices used by minors."

Naked came the short code

At this point, it seems only right that Ars readers be treated to Verizon's ad guidelines, which apply to commercial short code ad campaigns, in all their high Victorian glory. The list of thou shalt nots include "anything that is obscene or indecent or that contains strong sexual, explicit or erotic themes." In case you can't figure it out yourself, that means anything depicting or promoting pedophilia, "non-consensual contact," prostitution services, "nudity, nude beaches or naked cruises or resorts," or escort services or strip clubs. And let's not have any "extreme profanity," either.

But that's the just the tip of the iceberg. Verizon's guidelines say that materials that promote or glorify "rape, torture, cannibalism, suffering or death" are out of bounds, as are adoption and organ transplant services, products made from endangered species, and hunting trips that guarantee that you'll get to bump off at least an animal or two.

The list is also quite protective of numerous nonliving things. No products that unscramble cable or satellite services, please, and no items that "promote software or techniques that bypass copyright protections." No knockoffs of designer products, Verizon warns. No intel about guns and ammo available at gun shows. And for goodness sake, no radar detectors or "products or sites that appear to facilitate or promote the evasion of laws."

And while we're at it, credit card repair services, "multilevel marketing schemes," and Web sites "that have online gambling as a central theme" can take a walk—as can "products and sites of questionable legality." Verizon cites "miracle cure" sites as an example. Beyond that, you get to figure out whether you are legal or not. Oh, and outfits that promote "services, contests or games that predict winners of races or sporting events" also need not apply.

Finally, the wireless service reserves the right to block "hate speech" and any ad that "trivializes historic events such as the Holocaust, the Irish Famine or September 11th." The Armenian Massacre, the Trail of Tears, and the Inquisition didn't make the list, but the night is young.

To some, these guidelines may come off an obsessive-compulsive attempt to anticipate the objections of every conceivable interest group, from the animal rights crowd and gun controllers through the anti-porn screamers and MPAA/RIAA copyright squads. The list could get progressively longer and more complicated if the FCC doesn't relieve Verizon of its anxiously guarded role as Grand Bowdlerizer of Short Codes.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.